Barnett on Privileges or Immunities

Over at the Volokh Conspiracy. Law Prof. Randy Barnett, one of my favorites, has been posting periodically about the origins of the Privileges or Immunities Clause of the Fourteenth Amendment. The posts grow out of Prof. Barnett's recently-published article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, and in part respond to another recently-released paper, Philip Hamburger, Privileges or Immunities. To date they include Hamburger's "Rough Draft" on Privileges or Immunities, Philip Hamburger Responds on the Original Meaning of the Privileges or Immunities Clause, Jacob Howard Explains Privileges or Immunities, and Chief Justice Taney on the Privileges or Immunities of Citizens of the United States. More posts are on their way, I suspect, so make sure to watch for them.

If I may be so bold, Prof. Barnett's post on Chief Justice Taney makes a point that I noted several years ago in Justice Taney's Understanding of the "Privileges and Immunities of Citizens". See also Justice Curtis's Understanding of the "Privileges and Immunities of Citizens" and Democrats and Whigs on Citizens and Citizenship.

About the illustration:

A crudely drawn anti-Jackson satire, applauding Henry Clay's orchestration of Congressional resistance to the President's plan to withdraw Treasury funds from the Bank of the United States. The print also attacks Vice-President Van Buren's purported manipulation of administration fiscal policy. The title continues, "Shewing the Beneficial Effects of Clay & Co's Highly Approved Congress Water administered to a very old man sick of the Deposite [sic] Fever caused by wearing Van Buren's newly invented Patent Magic High Pressure Cabinet Spectacles." In the center Jackson, wearing dark spectacles, bends over, vomiting papers inscribed "Veto", "Responsibility" and "Message" while Henry Clay (seated at table, left) and Major Jack Downing (laughing, right) look on and comment. Clay holds a bottle, having just administered his "Congress Water" to Jackson: "'Tis good Chieftain 'twill bring forth Offensive matter." Downing: "...I kinder hinted To the Jinerl I ges'd Congress-Water and Responsibility wouldn't agree on his Stomach. The Jineral says to me says he 'Major that Clay is a bold impudent feller and will speak out his mind if the Divil stands at the Door." Jackson: "Devil Take the Treasury and my Secretary Too." Behind him, the Devil walks toward the door with Treasury Secretary Roger B. Taney and a sack "$200,000,000 United States Treasures" slung over his back. The image alludes to Congress's refusal to confirm Taney as Treasury Secretary.

Democrats and Whigs on Citizens and Citizenship

In his excellent book, Liberty and Power: The Politics of Jacksonian America, Harry L. Watson comes up with a wonderful insight into one difference between Democrats and Whigs. Democrats, Watson points out, emphasized complete equality between citizens; some citizens were not more equal than others. As a result, Watson argues, Democrats tended to view citizenship as an all-or-nothing proposition, and they shrank the boundaries of citizenship correspondingly to encompass only white males, who could truly be equals. Many Whigs, on the other hand, regarded citizenship as involving a "gradation of rights and responsibilities". That in turn permitted at least some to be more inclusive when defining should be entitled to be regarded as a citizen:

If Whigs were unwilling to grant full rights to "unqualified" immigrants, their acceptance of human inequality made them more willing than Democrats to accord partial rights to blacks and Indians. Instead of treating manhood and full citizenship as indivisible, Whigs could envision a gradation of rights and responsibilities ranging from one end of the social scale to the other. Edward Everett thus maintained that "the wholly untutored white man is little better than the wholly untutored red man," while the Whig editor of the American Review declared that "free institutions are not proper to the white man, but the courageous, upright and moral man." Democrats tended to oppose any suffrage rights for nonwhites, but even Southern Whigs could occasionally support the right to vote for free blacks who could pass requirements such as a property test.

It seems to me that the conflicting understandings of Roger Taney, a Democrat, and Benjamin Curtis, a Whig, concerning the meaning of the Privileges and Immunities Clause in the Dred Scott case perfectly illustrates Watson's hypothesis. Taney maintained that free blacks could not possibly be citizens because they would then be entitled to all the "privileges and immunities" of citizens, which he defined to include specific rights. Curtis, conversely, disagreed with Taney precisely because he did not accept Taney's premise that "privileges and immunities" were a specific set of rights. For Taney's argument and understanding of "privileges and immunities", see my discussion here. For Curtis, see here.

About the illustration:

A comic scene representing two New York city political factions, the Whigs and the radical Democrats (or "Loco Focos"), as scuffling newsboys. The scene takes place before the half-built Customs House, where several newsboys and a black chimney sweep are gathered watching a scrap involving a ragged youth selling "loco foco" matches and another newsboy. The match-seller raises his fist and threatens, "Oh! you d---d Whiggy." The latter, striking him, "I'll loco poke you." On the left three of the newsboys hold Democratic newspapers the "New York Evening Post" and the "New Era," and a copy of radical reformer Frances ("Fanny") Wright's lectures. One says, with a sidelong glance at the unfortunate match-seller, "I told him he had better not fight." The chimney sweep taunts them, "Does Fanny know you're out?" On the right, a second group of newsboys, holding copies of Whig journals, the "Transcript, Morning Courier and New York Enquirer, Gazette," and the "Evening Star," cheer on the winning fighter.

Justice Curtis' Understanding of "the Privileges and Immunities of Citizens"

I discussed the other day Chief Justice Taney’s apparent understanding of the meaning of the phrase “Privileges and Immunities of Citizens.” In Dred Scott, Taney articulated the belief that the phrase encompassed, at a minimum, rights such as the rights of free speech and freedom of assembly, and the right to bear arms. Indeed, Taney’s understanding of the phrase seems to have been crucial to his view of the case. One senses that Taney reached the conclusion that free blacks could never be citizens in large part because the contrary conclusion was unthinkable. It was simply inconceivable to him that free blacks could have the right to assemble, carrying firearms, at any time of the day or night.

Associate Justice Benjamin Robbins Curtis, one of the two Dred Scott dissenters, ironically came to a radically different conclusion about the meaning of the phrase.

By way of background, Justice Curtis expressed the belief that the states determined citizenship in the first instance. Each state had the right to determine which of its residents would be citizens of that state. But if a state determined that certain residents, such as free blacks, were citizens of the state, then those persons were also citizens of the United States.

Justice Curtis then restated the “privileges and immunities” argument that the Chief Justice had found persuasive:

It has been further objected that, if free colored persons, born within a particular State and made citizens of that State by its Constitution and laws, are thereby made citizens of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several states, and, if so, then colored persons could vote, and be eligible to not only Federal offices, but offices even in those States whose Constitution and laws disqualify colored persons from voting or being elected to office.

Justice Curtis flatly denied the premise of the argument: “But this position rests upon an assumption which I deem untenable.” In a nutshell, Justice Curtis denied that citizenship, by itself, necessarily conveyed any particular civil or political rights under state law. Put slightly differently, Justice Curtis asserted that states were free to, and did, establish additional qualifications that citizens needed to fulfill in order to be entitled to exercise particular rights:

So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is that citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights, and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided is a question to be determined by each State in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way.

Justice Curtis then turned more directly to the Privileges and Immunities Clause itself. The Clause, he asserted, did “not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities.” Citizens of one state who travel to another state “are entitled to such [privileges and immunities] as belong to citizenship [in the second state], but not to such as belong to particular citizens attended by other qualifications.”

Privileges and immunities which belong to certain citizens of a State by reason of the operation of causes other than mere citizenship are not conferred. Thus, if the laws of a State require, in addition to citizenship of the State, some qualification for office or the exercise of the elective franchise, citizens of all other States coming thither to reside and not possessing those qualifications cannot enjoy those privileges, not because they are not to be deemed entitled to the privileges of citizens of the State in which they reside, but because they, in common with the native-born citizens of that State, must have the qualifications prescribed by law for the enjoyment of such privileges under its Constitution and laws. It rests with the States themselves so to frame their Constitutions and laws as not to attach a particular privilege or immunity to mere naked citizenship. If one of the States will not deny to any of its own citizens a particular privilege or immunity -- if it confer it on all of them by reason of mere naked citizenship -- then it may be claimed by every citizen of each State by force of the Constitution, and it must be borne in mind that the difficulties which attend the allowance of the claims of colored persons to be citizens of the United States are not avoided by saying that, though each State may make them its citizens, they are not thereby made citizens of the United States, because the privileges of general citizenship are secured to the citizens of each State. The language of the Constitution is "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." If each State may make such persons its citizens, they became, as such, entitled to the benefits of this article if there be a native-born citizenship of the United States distinct from a native-born citizenship of the several States.

I cannot help but point out that Justice Curtis, quite clearly the best judge on the Court at the time, was the sole Supreme Court nominee of President Millard Fillmore.